Com. v. Muir, J. ( 2015 )

J-S23037-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JOEL G. MUIR, :
:
Appellant : No. 1970 EDA 2014
Appeal from the PCRA Order Entered May 22, 2014,
in the Court of Common Pleas of Montgomery County,
Criminal Division, at No(s): CP-46-CR-0001707-2004
BEFORE: DONOHUE, SHOGAN, and STRASSBURGER, JJ.*
MEMORANDUM BY STRASSBURGER, J.: FILED OCTOBER 27, 2015
Joel G. Muir (Appellant) appeals from the order entered on May 22,
2014, denying his petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S. §§ 9541-9546. Counsel has filed a petition for leave to
withdraw and no-merit letter pursuant to Commonwealth v. Turner, 544
A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550 A.2d 213 (Pa.
Super. 1988) (en banc). Upon review, we grant counsel’s petition to
withdraw and affirm the order of the PCRA court.
On direct appeal, this Court summarized the facts underlying this case.
Around 2:00 a.m., on August 3, 2001, in the parking lot of
the Sunnybrook Ballroom, [A]ppellant, co-defendant Nicholas
Roberts, and two unidentified men, riding in a maroon Toyota
Camry, approached one Rian Wallace, who was standing in the
parking lot, and began yelling, “New York Crips.” The two
unidentified men exited the vehicle and began doing a gang
ritual dance around Wallace, purportedly alerting Wallace to the
fact they were members of the Crips street gang. Appellant then
*Retired Senior Judge assigned to the Superior Court.
J-S23037-15
also exited the car, and the three men surrounded Wallace.
Shortly thereafter, two of Wallace’s friends, the victim Michael
Ziegler and Brandon Germany, arrived at the scene. No violence
occurred during this confrontation.
Wallace then left the scene with a friend, followed 30
minutes later by Ziegler, Germany, and two other men, driving a
gold Ford Taurus. After dropping off the other men at an
acquaintance’s house, Ziegler and Germany stopped briefly at a
motel party, and then drove to the home of a friend, Janae
Nixon. Ziegler parked on the street, and, according to
Germany’s testimony, [A]ppellant’s maroon Toyota Camry with
its lights turned out was also parked on that street. Co-
defendant Roberts was seated in the driver’s seat of the Camry,
[A]ppellant was in the passenger’s seat and two other individuals
were in the backseat. Appellant sped past the victim’s car, but
returned 10 minutes later, at about 3:00 a.m., minus the two
rear passengers. As [A]ppellant’s car approached Nixon’s home
and the parked Taurus, Germany, Nixon and a second woman,
Shena Beasley[,] were entering the Taurus. The victim already
was seated at the wheel. With Germany in the passenger seat,
the victim drove away, and [A]ppellant and Roberts, the driver
of the Camry, followed. As Roberts sped past the Taurus,
[A]ppellant, seated in the backseat, fired into the victim’s
vehicle, striking Ziegler in the head and killing him.
Commonwealth v. Muir, 909 A.2d 884 (Pa. Super. 2006) (unpublished
memorandum at 1-3).
Appellant absconded to New York and was apprehended three years
later. After a six-day trial, a jury found Appellant guilty of first-degree
murder, as well as related offenses including conspiracy and possession of a
firearm without a license. On December 29, 2004, Appellant was sentenced
to two concurrent terms of life imprisonment for first-degree murder and
conspiracy to commit first-degree murder, and three consecutive terms of
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seven to fourteen years of incarceration for the other charges. This Court
affirmed Appellant’s judgment of sentence on August 23, 2006. Muir,
supra. After a series of procedural turns,1 our Supreme Court denied
Appellant’s petition for allowance of appeal on March 29, 2012.
Commonwealth v. Muir, 42 A.3d 292 (Pa. 2012).
On December 18, 2012, Appellant timely filed a pro se PCRA petition.
Henry S. Hilles, III, Esquire (Attorney Hilles) was appointed to represent
Appellant. On September 30, 2013, Attorney Hilles filed a third amended
PCRA petition, which stated that this petition “fully replaces the first and
second amended PCRA petitions.” Third Amended PCRA Petition, 9/30/2013,
at ¶ 14. Appellant set forth one issue concerning trial counsel’s ineffective
assistance with respect to Appellant’s right to testify on his own behalf.
Specifically, Appellant argued that counsel misadvised Appellant that his
prior non-crimen falsi convictions would be admissible if he chose to testify.
Appellant also argued that trial counsel “refused” to permit Appellant to
testify. Id. at ¶ 18.
An evidentiary hearing was held on January 22, 2014, and on May 22,
2014, the PCRA court denied Appellant’s request for PCRA relief. On June
1
These procedural turns included Appellant’s being abandoned by counsel
causing the reinstatement of Appellant’s PCRA rights, followed by the grant
of Appellant’s PCRA petition which permitted him to file a petition for
allowance of appeal to our Supreme Court from this Court’s affirmance of his
judgment of sentence.
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23, 2014, Appellant timely filed a pro se notice of appeal.2 On June 23,
2014, Attorney Hilles filed with the PCRA court a petition for leave to
withdraw as counsel and no-merit letter pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc).3 On July 2, 2014, the PCRA court
permitted counsel to withdraw. On July 18, 2014, Appellant filed
“Objections” to the PCRA court’s decision to allow Attorney Hilles to
withdraw, essentially claiming that Attorney Hilles was ineffective for
petitioning to withdraw as counsel at that juncture in the proceedings.
On appeal, we remanded the case for the appointment of new counsel,
concluding that the PCRA court was without jurisdiction to permit counsel to
withdraw after Appellant timely filed a notice of appeal. Commonwealth v.
2
Although Appellant’s notice of appeal was not docketed until June 26,
2014, we consider it as being filed, at the latest, on June 23, 2014, the date
stamped on the envelope, as Appellant is incarcerated. See
Commonwealth v. Chambers, 35 A.3d 34, 38 (Pa. Super. 2011) (“[T]he
prisoner mailbox rule provides that a pro se prisoner’s document is deemed
filed on the date he delivers it to prison authorities for mailing.”). Since the
PCRA court order was filed on May 22, 2014, Appellant had until June 23,
2014 to file timely a notice of appeal. Thus, the instant appeal was filed
timely under the prisoner mailbox rule.
3
In that letter, Attorney Hilles advised Appellant that the deadline to file a
notice of appeal was “today,” meaning, the day Attorney Hilles sent the
letter to Appellant. No-merit Letter, 6/23/2014, at 1. That letter also
included a thorough analysis of the one issue presented in Appellant’s PCRA
petition, along with six issues Appellant specifically asked Attorney Hilles to
review. Attorney Hilles concluded that none of these issues had merit
warranting an appeal.
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Muir, 1970 EDA 2014 (Pa. Super. filed May 29, 2015). The PCRA court
appointed new counsel, Melissa A. Lovett, Esquire, on June 8, 2015. On July
20, 2015, Attorney Lovett filed with this Court a petition for leave to
withdraw and no-merit letter pursuant to Turner/Finley.
We review such matters as follows.
… Turner/Finley counsel must review the case zealously.
Turner/Finley counsel must then submit a “no-merit” letter to
the trial court, or brief on appeal to this Court, detailing the
nature and extent of counsel’s diligent review of the case, listing
the issues which the petitioner wants to have reviewed,
explaining why and how those issues lack merit, and requesting
permission to withdraw.
Counsel must also send to the petitioner: (1) a copy of
the “no-merit” letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to
proceed pro se or by new counsel.
If counsel fails to satisfy the foregoing technical
prerequisites of Turner/Finley, the court will not reach the
merits of the underlying claims but, rather, will merely deny
counsel’s request to withdraw. Upon doing so, the court will
then take appropriate steps, such as directing counsel to file a
proper Turner/Finley request or an advocate’s brief.
However, where counsel submits a petition and no-merit
letter that do satisfy the technical demands of Turner/Finley,
the court—trial court or this Court—must then conduct its own
review of the merits of the case. If the court agrees with
counsel that the claims are without merit, the court will permit
counsel to withdraw and deny relief. By contrast, if the claims
appear to have merit, the court will deny counsel’s request and
grant relief, or at least instruct counsel to file an advocate’s
brief.
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Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007)
(citations omitted).
We are satisfied that counsel has complied with the technical
requirements of Turner/Finley.4 We now consider all of the issues
Appellant wishes us to review.
When we review the propriety of the PCRA court’s order, we are
limited to determining whether the court’s findings are supported by the
record and whether the order in question is free of legal error.
Commonwealth v. Grant, 992 A.2d 152, 156 (Pa. Super. 2010). This
Court will not disturb the PCRA court’s findings if there is any support for the
findings in the certified record. Id.Moreover, in order to obtain relief based on a claim of ineffective
assistance of counsel under the PCRA, the petitioner must prove that:
4
On August 14, 2015, Appellant filed a pro se “Application for Clarification.”
In that application, Appellant states that this Court’s prior opinion was
“unclear and [did] not specify how or when Appellant is entitled to respond
to counsel’s no-merit letter filed before this Court.” Application for
Clarification, 8/14/2015, at ¶ 12. However, in compliance with the
mandates of Turner/Finley, Attorney Lovett specifically advised Appellant
of the following: “[I]f PCRA counsel filed a Turner/Finley brief on appeal,
the appellant has the right to file a brief advocating on his own behalf. …
Therefore, you are allowed to proceed with your appeal pro se or with
privately retained counsel if I am permitted to withdraw from your case.”
Turner/Finley letter, at 11. Thus, Appellant had the right to file with this
Court a new pro se brief if he so desired. He did not do so; however, this
Court has the brief he filed originally, which addresses all of the issues that
could possibly be raised in this case. Moreover, issues of all PCRA counsel
effectiveness will be addressed infra. Accordingly, Appellant’s “Application
for Clarification” is denied.
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(1) the underlying claim is of arguable merit; (2) counsel’s
performance lacked a reasonable basis; and (3) the
ineffectiveness of counsel caused the petitioner prejudice. A
chosen strategy will not be found to have lacked a reasonable
basis unless it is proven that an alternative not chosen offered a
potential for success substantially greater than the course
actually pursued. To demonstrate prejudice, the petitioner must
show that there is a reasonable probability that, but for counsel’s
error or omission, the result of the proceeding would have been
different. A reasonable probability is a probability that is
sufficient to undermine confidence in the outcome of the
proceeding. A failure to satisfy any one of the three prongs of
the test for ineffectiveness requires rejection of the claim.
Commonwealth v. Cam Ly, 980 A.2d 61, 73 (Pa. 2009) (internal quotation
marks and citations omitted).
To provide background for the issues presented in this appeal, we
summarize the testimony presented at the PCRA hearing. Appellant testified
about his version of the events that occurred on the night of the shooting
and why he believes counsel was ineffective in failing to pursue the defense
of self-defense. He testified that “everyone went to a party, [and] a little
confrontation happened at the party.” N.T., 1/22/2014, at 7. Codefendant
Nicholas Roberts and Appellant were going to pick up Jeanae Nixon and
Shena Beasly “to go hang out after the party.” Id. However, when
Appellant, who was sitting in the backseat, and Roberts arrived at Nixon’s
house, Brandon Germany and Michael Zeigler were there. Appellant and
Roberts drove around the block, and Appellant called Nixon to see if Nixon
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and Beasly were going to get in the car with them. Nixon informed
Appellant that she and Beasly were going to go with Germany and Zeigler.
According to Appellant, Nixon and Beasly got into the car with
Germany and Zeigler, and by “coincidence,” Appellant and Roberts were
driving behind them. Id. at 9. The front car stopped at a stop sign, and
Roberts then “proceeded to go around them … because they stopped at a
stop sign.” Id. at 10. Appellant then testified as follows.
So we going around to get past them to leave. As we coming
around, okay, the way Michael Zeigler was, he was more, like,
driving, like, slumped in the car. I see Brandon Germany with
the gun, and he’s pointing out the window. And I said
something to the fact like, he got a hammer, and I pulled out,
and I started firing. From there we left, all right.
Id. Appellant further testified that “[i]f Brandon Germany never pulled out
a gun, this wouldn’t have happened.” Id. at 11.
Appellant also testified about the fact he did not testify at trial. He
stated that at the time of the shooting, he “was on parole in New York for a
gun and a drug charge.” Id. at 14. He testified that trial counsel told him
that the Commonwealth could use his criminal history against him to make
him “look like a liar and destroy [his] credibility.” Id. at 14-15. He was
concerned they were going to make him “look like a liar and a bad person”
because he had a “drug and gun charge.” Id. at 15.
Trial counsel testified that Appellant never told trial counsel that
Germany had a gun that night; however, Appellant did tell trial counsel that
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Germany had a reputation for carrying a firearm. Id. at 26. Trial counsel
also testified that he told Appellant that his drug conviction could not be
introduced as evidence against him, but the gun conviction could potentially
be used to demonstrate that Appellant had access to a firearm. Id. at 27.
Additionally, trial counsel testified that, based on the information he had, the
best available defense strategy was a combination of poor witness
identification of the shooter because it was dark that night, along with
Appellant’s lack of motive to kill the victim. Trial counsel believed these
strategies to be inconsistent with the idea of self-defense.
With this background in mind, we review the issues set forth the
Turner/Finley letter to determine if we agree with counsel’s conclusion that
they are without merit. We first consider whether trial counsel was
ineffective for purportedly advising Appellant not to testify because it would
permit the Commonwealth to introduce evidence of Appellant’s prior gun and
drug convictions. Turner/Finley Letter, 7/15/2015, at 3 (unnumbered);
Appellant’s Brief at 38-44.
The PCRA court opined as follows.
[T]rial counsel credibly testified that [Appellant] had decided
before trial that the best available defense strategy would be to
challenge the reliability of the Commonwealth’s eyewitness
identification testimony intended to prove that it was, in fact,
[Appellant] who was the man firing bullets from the backseat of
the car. Second, trial counsel credibly testified that he never
told [Appellant] that he could be impeached with a drug
conviction…. Fourth, it is wholly incredible that [Appellant] would
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fear proof he had access to a firearm while admitting to the jury
that he not only had a firearm, but that he had it at the ready to
defend himself upon being surprised to see someone in another
moving car aiming to shoot him. Fifth, it is beyond belief that
[Appellant] stood accused of having committed a cold-blooded,
gangland style “hit” at point-blank range and was facing a
lifetime in prison and that he nevertheless chose not to testify in
his defense because he feared that the jury might judge him to
be a “liar and a bad person.” [Appellant] wholly failed to
persuade [the PCRA court] that trial counsel committed a breach
of his duty to provide effective representation that caused
[Appellant] not to exercise his right to take the stand at trial and
testify in his own defense.
PCRA Court Opinion, 8/22/2014, at 7-8 (citations omitted).
Instantly, the PCRA court credited trial counsel’s testimony and
discredited Appellant’s testimony from the PCRA hearing. “The findings of a
post-conviction court, which hears evidence and passes on the credibility of
witnesses, should be given great deference.” Commonwealth v. Jones,
912 A.2d 268, 293 (Pa. 2006). Our review of the testimony from the
hearing reveals that the PCRA court’s conclusions are supported by
competent evidence of record. Accordingly, we agree with counsel and the
PCRA court that this issue is meritless.
Appellant’s next three issues involve trial counsel’s strategy.
Specifically, Appellant argues that trial counsel should have pursued an
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imperfect self-defense theory in this case. Appellant’s Brief at 15-34, 45-54.
Turner/Finley Letter at 5-7, 8.5
A defense of “imperfect self-defense” exists where the defendant
actually, but unreasonably, believed that deadly force was
necessary. However, all other principles of self-defense must still
be met in order to establish this defense. The requirements of
self-defense are statutory: “The use of force upon or toward
another person is justifiable when the actor believes that such
force is immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other person
on the present occasion.” 18 Pa.C.S.A. § 505(a). If “the defender
did not reasonably believe deadly force was necessary [,] he
provoked the incident, or he could retreat with safety, then his
use of deadly force in self-defense was not justifiable.”
Commonwealth v. Fowlin, [] 710 A.2d 1130, 1134 ([Pa.]
1998). A successful claim of imperfect self-defense reduces
murder to voluntary manslaughter.
Commonwealth v. Truong, 36 A.3d 592, 599 (Pa. Super. 2012) (en banc)
(some citations omitted).
Appellant’s entire self-defense claim is premised on the fact that he
purportedly saw Germany with a gun that night. However, trial counsel
testified that Appellant never told him that he saw Germany with a gun that
night. N.T., 1/22/2014, at 26. Moreover, trial counsel stated that “at the
time of the shooting when the decedent was found and soon thereafter, all
5
In addition to a general argument that self-defense was a better theory for
the defense, Appellant argues that trial counsel was ineffective for failing to
request a jury instruction for imperfect self-defense. Turner/Finley Letter
at 5. Appellant also argues that trial counsel was ineffective for failing to
investigate witnesses to support the theory of imperfect self-defense. Id. at
6.
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the witnesses in the car denied having any evidence of Brandon Germany
carrying a firearm.” Id. at 29.
Trial counsel’s testimony is supported by the evidence presented by
the Commonwealth at trial. At trial, Germany testified he did not have a
gun and also that nobody with him had a gun that he observed. N.T.,
8/20/2004, at 48-9. Furthermore, both Beasly and Nixon testified that
Brandon Germany did not have a gun. N.T., 8/19/2004, at 83, 162-63.
Thus, the crux of Appellant’s argument, that he shot at the car in self
defense, was utterly contrary to the other evidence presented at trial. We
agree with the PCRA Court’s conclusion that counsel’s strategy, wherein he
did not pursue self defense, was reasonable. Accordingly, trial counsel could
not be ineffective for failing to request a jury instruction on this basis.
With respect to Appellant’s claim that trial counsel failed to prepare
adequately for the defense of self-defense by investigating relevant
witnesses, we consider the following.
When raising a claim of ineffectiveness for the
failure to call a potential witness, a petitioner
satisfies the performance and prejudice requirements
of the [Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),] test by
establishing that: (1) the witness existed; (2) the
witness was available to testify for the defense; (3)
counsel knew of, or should have known of, the
existence of the witness; (4) the witness was willing
to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to
have denied the defendant a fair trial....
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Commonwealth v. Sneed, 45 A.3d 1096, 1108–09 (Pa. 2012).
“To demonstrate Strickland prejudice, a petitioner must show
how the uncalled witnesses’ testimony would have been
beneficial under the circumstances of the case.” Sneed, 45 A.3d
at 1109. Counsel will not be found ineffective for failing to call a
witness “unless the petitioner can show that the witness’s
testimony would have been helpful to the defense. A failure to
call a witness is not per se ineffective assistance of counsel for
such decision usually involves matters of trial strategy.” Id.
(internal quotation marks and citations omitted).
Commonwealth v. Matias, 63 A.3d 807, 810-11 (Pa. Super. 2013).
Three of the witnesses that Appellant claims should have been
interviewed to support this theory were Nixon, Beasly, and Germany.
Appellant’s Brief at 29-34. However, as detailed supra, all three witnesses
testified that Germany did not have a gun that night; thus, that testimony
would not have been helpful to the defense. Accordingly, Appellant’s issue
lacks arguable merit.
Appellant also claims that trial counsel was ineffective for failing to
investigate two other fact witnesses, namely Patricia Whitehawk (also
referred to as “Ms. Pat”) and Larry Phillips. Appellant’s Brief at 25-29.
Specifically, Appellant argues that the testimony of Patricia Whitehawk would
have established that Germany went to her house after the incident
“brandishing a handgun and looking for Appellant.” Id. at 25. At the PCRA
hearing, trial counsel testified as follows.
And I do recall us having a conversation about Ms. Pat in
particular; so my investigator certainly would have attempted to
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go and see Ms. Pat, and I do recall having a conversation about
her. … My recollection was that I think there were several
attempts to reach [Ms. Pat] to no avail and that was discussed
with [Appellant] as well.
N.T., 1/22/2014, at 33.
Whitehawk “is now deceased” and therefore, Appellant could not
receive a new trial on this basis, as Whitehawk is unavailable to testify.
Turner/Finley Letter, at 6 (unnumbered). Moreover, the PCRA court
believed trial counsel’s testimony that he attempted to contact Whitehawk.
Accordingly, Appellant cannot now meet the standards set forth in Matias to
prevail on his ineffectiveness claim.
With respect to Larry Phillips, Appellant argues that he “was a first
responder to the scene of the shooting” and provided a statement to police
that he “saw a guy standing on the sidewalk with a gun.” Appellant’s Brief at
27-28. Appellant’s pro se PCRA petition requests that the Commonwealth
turn over to him “the statement from Commonwealth witness Larry Phillips.”
PCRA Petition, 12/28/2012, at 6. Our review of the record finds no other
reference to Larry Phillips. Notably, in the Turner/Finley letter prepared by
Attorney Hilles, there is no indication Appellant brought this witness to
counsel’s attention. See Petition to Withdraw, 6/23/2014, at Exhibit A. In
that petition, Attorney Hilles states that Appellant “asked [him] to raise six
(6) specific issues” and attached a pro se brief to file. Id. Attorney Hilles
went on to explain why each of the claims is without merit. Absent from the
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discussion of trial counsel’s ineffective assistance for failure to call a
potential witness is any reference to Larry Phillips. Moreover, Appellant’s
brief to this Court refers to Larry Phillips’ statement to police as being in the
reproduced record at page 17. Our review of the reproduced record reveals
no page 17 of the reproduced record or any statement by Larry Phillips in it.
Based on the foregoing, any issue with respect to Larry Phillips has been
waived.
We now turn to Appellant’s next argument where he contends that trial
counsel was ineffective for failing to investigate and present character
witnesses. Appellant’s Brief at 34-38. Appellant asserts that counsel was
ineffective in failing to contact Curtis Jack, Jamel Harris, and Joseph Bodrick.
The failure to call character witnesses does not constitute
per se ineffectiveness. In establishing whether defense counsel
was ineffective for failing to call witnesses, appellant must
prove: (1) the witness existed; (2) the witness was available to
testify for the defense; (3) counsel knew of, or should have
known of, the existence of the witness; (4) the witness was
willing to testify for the defense; and (5) the absence of the
testimony of the witness was so prejudicial as to have denied the
defendant a fair trial.
Commonwealth v. Treiber, 2015 WL 4886374, at *23 (Pa. August 17,
2015) (citations and quotations omitted).
The Rules of Evidence are specific as to what type of character
evidence may be presented at trial.
As a general rule, evidence of a person’s character may
not be admitted to show that individual acted in conformity with
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that character on a particular occasion. Pa.R.E. 404(a). However,
Pennsylvania Rule of Evidence 404(a)(1) provides an exception
which allows a criminal defendant to offer evidence of his or her
character traits which are pertinent to the crimes charged and
allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1).
This Court has further explained the limited purpose for which
this evidence can be offered:
It has long been the law in Pennsylvania that
an individual on trial for an offense against the
criminal law is permitted to introduce evidence of his
good reputation in any respect which has “proper
relation to the subject matter” of the charge at issue.
Such evidence has been allowed on a theory that
general reputation reflects the character of the
individual and a defendant in a criminal case is
permitted to prove his good character in order to
negate his participation in the offense charged. The
rationale for the admission of character testimony is
that an accused may not be able to produce any
other evidence to exculpate himself from the charge
he faces except his own oath and evidence of good
character.
It is clearly established that evidence of good
character is to be regarded as evidence of
substantive fact just as any other evidence tending
to establish innocence and may be considered by the
jury in connection with all of the evidence presented
in the case on the general issue of guilt or
innocence. Evidence of good character is substantive
and positive evidence, not a mere make weight to be
considered in a doubtful case, and, ... is an
independent factor which may of itself engender
reasonable doubt or produce a conclusion of
innocence. Evidence of good character offered
by a defendant in a criminal prosecution must
be limited to his general reputation for the
particular trait or traits of character involved in
the commission of the crime charged. The cross-
examination of such witnesses by the
Commonwealth must be limited to the same traits.
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Such evidence must relate to a period at or about
the time the offense was committed, and must be
established by testimony of witnesses as to the
community opinion of the individual in
question, not through specific acts or mere
rumor.
Commonwealth v. Johnson, 27 A.3d 244, 247-48 (Pa. Super. 2011)
(quoting Commonwealth v. Luther, 463 A.2d 1073, 1077–78 (Pa. Super.
1983) (citations omitted) (emphasis added)).
Attached to his pro se PCRA petition were three identical affidavits
from the aforementioned individuals. All three stated the following: “2.
That I do know his past which involve some problems with the law but that I
do not judge him because of that, I base my decision of his character on
who he is as a person that I personally know.” Affidavit of Curtis Jack,
6/12/2012; Affidavit of Jamel Harris, 6/4/2012; Affidavit of Joseph Bodrick,
5/14/2012.
These affidavits reveal that the testimony that these three individuals
would offer was both irrelevant and inadmissible. The affidavits are void of
any information that Appellant has a reputation for being law abiding and
peaceful. Accordingly, “the absence of the testimony of the witness[es] was
[not] so prejudicial as to have denied the defendant a fair trial.” Treiber,
supra.
Appellant’s final two issues relate to PCRA counsel’s abandonment of
Appellant on appeal. Turner/Finley Letter at 10-11; Appellant’s Brief at 55-
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65. This Court remedied that situation in its prior memorandum by
remanding the case for the appointment of new counsel. New counsel was
appointed, she filed a Turner/Finley no-merit letter, and now this Court has
undertaken a thorough review of the issues. Accordingly, Appellant’s claims
about prior PCRA counsel’s performance are moot.
In summary, we are reminded of the following. “A claim of
ineffectiveness generally cannot succeed through comparing, in hindsight,
the trial strategy employed with alternatives not pursued.” Commonwealth
v. Washington, 927 A.2d 586, 600 (Pa. 2007). Furthermore, “[a] fair
assessment of attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Commonwealth v. Carson, 913 A.2d 220, 274
(Pa. 2006). While it may look now to Appellant that trial counsel should
have pursued a self-defense theory in hopes that Appellant’s conviction
would be reduced to voluntary manslaughter, at the time of trial counsel’s
investigation, the evidence was not there to support such a defense. Based
on the foregoing, we affirm the order of the PCRA court and grant counsel’s
petition to withdraw.
Order affirmed. Petition to withdraw as counsel granted.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2015
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